Texas and its cities are already suing each other over the state's ban on 'sanctuary cities'

In this Sunday, May 7, 2017 frame from video posted by the Office of the Governor, Republican Gov. Greg Abbott talks about a so-called "sanctuary cities" ban in Austin Texas.
Office of Gov. Abbott via Associated Press
Texas and its localities have already begun suing one another over the state's new law banning so-called "sanctuary cities," drawing fresh battle lines in the debate over local police departments' roles in enforcing federal immigration law.

In a remarkable move on Monday, Texas preemptively sued a handful of local officials who had publicly opposed the ban, including Austin Mayor Steve Adler, Travis County Sheriff Sally Hernandez, and all 10 Austin city councilors.

The lawsuit effectively takes the first stab at litigation before the city of Austin or Travis County filed their own suit, and seeks to have a judge declare the sanctuary cities ban, known as SB 4, constitutional.

The suit accuses the local officials of being "publicly hostile to cooperation with federal immigration enforcement," and the office of Texas Attorney General Ken Paxton said the lawsuit was filed to "defend the right and duty of law enforcement agencies throughout Texas to detain individuals" in cooperation with the federal Immigration and Customs Enforcement (ICE) agency.

Also named as a defendant in Texas' suit is the Mexican American Legal Defense and Education Fund (MALDEF), which released a scathing statement calling the lawsuit a "frivolous legal action."

"The state bespeaks its own apparent high anxiety about the legality of Abbott's Folly, SB 4, by seeking a preemptive strike through this lawsuit," the organization said. "We hope that both the governor and the attorney general will seek treatment for an apparent problem with premature litigation."

SB 4 was signed late Sunday night by Gov. Greg Abbott, a Republican and longtime critic of sanctuary policies. The law, set to take effect Sept. 1, will allow police officers to question people on their immigration statuses if they are arrested or detained. It will also allow local officials to be charged with a Class A misdemeanor if they knowingly fail to comply with federal requests to detain suspected unauthorized immigrants.

Currently, jurisdictions are not obligated under federal law to honor those requests, known as detainers. They are only required by the federal code to not interfere in the exchange of information between government entities on people's immigration or citizenship statuses, which nearly all supposed sanctuary cities currently do.

In the meantime, law enforcement agencies are preparing to cooperate with SB 4, should it eventually take effect. Hernandez has told media that although she disagrees with SB 4, she "will not violate the law," and Austin Police Chief Brian Manley has said his department is reviewing the law's language and will assess any potential policy or procedural changes that must be made.

But late on Monday, another Texas jurisdiction unexpectedly threw its hat into the ring, filing suit against Texas. The small border town of El Cenizo, a self-described sanctuary city with fewer than 4,000 residents, is seeking injunctive relief against SB 4 and asked that a judge declare the law unconstitutional, according to legal filings.

El Cenizo employs policies that prevent local police officers from honoring federal requests to detain immigrants and asking about people's immigration statuses, and argued in its civil complaint that SB 4 "commandeers" local governments' constitutional rights. The city was joined in its lawsuit by Mayor Raul Reyes, the Maverick County sheriff, and the League of United Latin American Citizens.

"It's reckless, dangerous, and discriminatory and does not represent life on the border," Reyes said of SB 4, according to the Dallas News. "I think this opens up the door to racial profiling against Hispanics."

SB 4's proponents have resisted this narrative, pointing to a provision in the bill that prohibits discrimination based on race, color, religion, language, or national origin. Instead, they have sought to frame the issue as one of law and order, arguing that the measure was only necessary because local officials refused to comply with federal immigration law.

Students gather in the Rotunda at the Texas Capitol to oppose SB4, an anti-"sanctuary cities" bill that already cleared the Texas Senate and seeks to jail sheriffs and other officials who refuse to help enforce federal immigration law, as the Texas House prepares to debate the bill, Wednesday, April 26, 2017, in Austin, Texas.
Associated Press/Eric Gay

Texas jurisdictions who oppose SB 4, however, have argued that they do comply with federal laws. They say their choice to decline ICE detainer requests is a separate issue — the requests are not mandatory under federal law unless they are accompanied by a court order or a warrant signed by a judge.

Federal courts have indeed ruled in the past that honoring ICE detainers can even violate inmates' constitutional rights.

SB 4 was also widely opposed by top law enforcement officials across the state, including police chiefs and sheriffs from Texas' largest cities.

SB 4 will "coerce local law enforcement to dedicate frequently scarce resources — such as jail space, on-duty officers, and local tax dollars — to a job that is supposed to be done and funded by the federal government," sheriffs from Travis County, Dallas County, Harris County, Bexar County, and El Paso County wrote in an open letter published in the Austin American-Statesman last month.

"This bill is a result of anti-immigrant grandstanding and will strip local law enforcement of our designated power and ability to protect and serve our communities."

The Texas chapter of the American Civil Liberties Union has also said it is studying the bill to determine which parts to contest in court, and on Tuesday issued an "advisory" warning potential travelers to the state "to anticipate the possible violation of their constitutional rights when stopped by law enforcement."